South Africans must defend the independence of its judiciary and value its strength

February 1st, 2018

Editor-in-Chief of City Press, Mondli Makhanya was the keynote speaker at the Cape Law Society’s annual general meeting held in November 2017.

By Kgomotso Ramotsho

The Cape Law Society (CLS) held its annual general meeting and conference from 10 to 11 November 2017 in East London. Giving the keynote address, Editor-in-Chief of City Press, Mondli Makhanya, said South Africa (SA) finds itself in a position where even though our country is still one of the most vibrant democracies not only in the continent but in the world, we are at a very precarious time. There is a very sustained assault on the rule of law, an assault on the rules of basic decency and a questioning of our constitutional foundations. Mr Makhanya noted that it is time for society to re-think, re-look and re-capture the centre stage of our constitutional development. He said SA can learn from newly liberated countries on the continent, and has seen how things can go wrong when leaders are given too much power and trust.

Mr Makhanya referred to the constitutional ruling on the Nkandla matter (see Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others 2016 (3) SA 580 (CC)) as one of the most epic judgments that he believes people should always refer to. He said the judgment re-echoed the values that the founders of our democracy thought about back in the days of the Convention for a Democratic South Africa from 1994 and leading to 1996 when the final Constitution was completed. ‘It is up to us, the citizens, to say we own this democracy and we will determine our own way,’ Mr Makhanya added.

Mr Makhanya pointed out that the months leading up to the 2019 elections will be eventful. He noted that there will be space for more voices in society, voices that should be used, voices that are in the legal profession, which are dedicated to the rule of law. He said there will be space for activism, space to redefine, redream and re-create SA going into 2019 and beyond. ‘We are at a moment of darkness before the dawn,’ Mr Makhanya added.

Mr Makhanya pointed out that there are two particular documents that speak on what needs to be done in SA. He said one of the documents was written by the Save South Africa initiative, entitled ‘Minimum demands’ (see S Pityana ‘“Minimum demands” will ensure integrity of govt – Save South Africa’, accessed 7-12-2017) and it contained six minimum demands. He said one of the demands is to restore credibility to the institutions of the criminal justice system. He added that this demand woke SA up to what is happening in the criminal justice system, it woke the country up to what is happening with the National Prosecuting Authority (NPA), the South African Police Service (SAPS), the Hawks and other institutions, which are supposed to maintain the rule of law. He said that the institutions are captured to a point where there is very little respect for them.

Mr Makhanya said that one particular demand says the people of SA should make sure that those institutions are respected. Mr Makhanya added that he believed that organisations, such as the CLS, should be active in making sure that there is restoration and credibility of the criminal justice system. He noted that another demand was about the affirmation of all political parties and political players, to affirm the independence of the judiciary. ‘We are very fortunate in SA that we have [the] kind of judiciary that we have. That there are women and men in our judiciary who have stood up to power, who have not said “we will be cowardly, that we will be comradely, that we will be friendly with power,”’ he said.

Professor Pierre de Vos spoke about corruption at the Cape Law Society’s annual general meeting held in November 2017 in East London.

Constitutional law expert, Professor Pierre de Vos said everything that has to do with the fighting of corruption has to do with who decides what needs to happen and when it needs to happen. He added that on paper SA has an excellent legislative framework structure to combat corruption both in the public sphere and in the private sphere. He noted that on paper there is an almost perfect system for combating corruption, but in the real world it does not always work. He pointed out that this is not surprising as there are people with a lot of economic, political and social power and it is not in their interest that corruption be fought effectively.

Prof de Vos said on the Internet statistics showed that since 2009, when the directorate special operations – known as the Scorpions – were disbanded there has been a 60% decline in arrests and an 83% decrease in convictions. He noted that those statistics were difficult to verify and compare as the mandate of the Scorpions and the Hawks are not exactly the same. He pointed out that the Hawks (which was created, when the Scorpions were disbanded) has a very strong mandate to fight corruption.

Prof de Vos noted that in a 2014 judgment the Constitutional Court said it was for the Hawks and for the head of the Hawks to decide on the kind of crimes to pursue (see Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC)). He said the legislation of the South African Police Service Act 68 of 1995 specifically says it has to pursue the national priority offences, which in the opinion of the head of the Hawks, needs to be perused and selected offences that are referred to in the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the Act). He said if one looks at the Act, it is a brilliant piece of legislation and it is very comprehensive, and added that the framework is quite strong, but the implementation seems to be lacking.

Prof de Vos said two issues arise that can potentially be a problem. The first question that needs to be asked is: Are institutions, such as the Hawks and the NPA, independent? Is the independence of those institutions sufficiently safe guarded? The second question that needs to be asked is: Are the individuals who are appointed to head these institutions, individuals of integrity and people who are fearless and are prepared to act in an independent manner?

Cape Law Society Vice President, Ettienne Barnard paid a tribute to the late Chief Executive Officer of the Law Society of South Africa and Director of Legal Education and Development, Nic Swart.

Tribute to Nic Swart

CLS’s Vice President Ettienne Barnard said that the late Chief Executive Officer of the Law Society of South Africa (LSSA) and Director of Legal Education and Development (LEAD), Nic Swart, had been a director of legal education for 28 years and was the CEO of the LSSA for the past six years. For many Mr Swart was the mentor of mentors and the developer of international leaders. He noted that although Mr Swart was humble and had an impressive career, he always made one realise that he was creating something bigger than himself or his immediate surroundings.

Mr Barnard added that, in addition to Mr Swarts’s many achievements, he was committed to develop SA’s legal profession, to improving briefing patterns,  empowering women and developing the youth. He said that Mr Swart influenced many legal practitioners. He added that Mr Swart had spoken at many events and conferences and made contributions at universities and at the Society of Law Teachers of Southern Africa, annual general meetings of provincial law societies, attorneys associations and students associations. Mr Barnard said that Mr Swart was also a loving husband and father, as well as a friend to many in the legal profession. Mr Swart’s wife, Mariette Swart, was presented with a plaque in memory of her husband from the council of the CLS.

Mariette Swart was presented with a plaque for the memory of her husband Nic Swart, from the council of the Cape Law Society.

Update on LPA and transitional body

Member of the National Forum on the Legal Profession (NF) and attorney, Jan Stemmett, said the impact of the amendments to the Legal Practice Act 28 of 2014 (LPA) are as follows: Section 117 of the LPA extends the life of the statutory law societies until the final transfer has taken place from the statutory law societies to the Legal Practice Council (LPC) and that is expected to be by October. He added that s 117 reads that when ch 2 comes to operation the statutory law societies will have to stop functioning. He pointed out that the NF and the statutory law societies must agree on the date of transfer, which should not be later than six months after ch 2 comes to operation.

Mr Stemmett said ch 2 establishes the LPC and that it is structured in that way because the LPA is coming into operation in three phases, namely, the establishment of the NF; then the establishment of the LPC (ch 2); and the remaining chapters will come into operation on later dates.

Member of the National Forum on the Legal Profession and attorney, Jan Stemmett, gave an update on the Legal Practice Act’s amended sections at the Cape Law Society’s annual general meeting in East London.

Mr Stemmett said the NF had tried to keep the levy to be paid by legal practitioners as low as possible. The initial plan provided that practising legal practitioners would pay a levy of R 2 500 (including VAT) and non-practising legal practitioners would pay R 500. Mr Stemmett said the NF was told that they must not expect any intervention regarding cost of the LPC from the government and the NF were compelled to revise the figures to R 3 500 for practicing legal practitioners and R 800 for non-practising legal practitioners.

Mr Stemmett said the NF had completed 80% of its recommendations and
s 97(6) of the Act states that the NF must submit the draft recommendations to the Minister of Justice and Correctional Services, Michael Masutha, before ch 2 commences, to give the minister time to consider the regulations and get approval of the regulations by Parliament. He added that the Act says all the recommendations must be approved by Parliament.

Black Lawyers Association and outgoing President of the Law Society of the Northern Provinces, Lutendo Sigogo, discussed the Law Society of South Africa’s Transitional Committee at the Cape Law Society’s annual general meeting.

Law Society of the Northern Provinces President and the Black Lawyers Association (BLA), Lutendo Sigogo, said that the LSSA called for a special council meeting in March 2017, inter alia, to attend to the constitution of the LSSA to cater for the  transition of the LSSA into the new dispensation. He added that it was agreed that there should be a Transitional Committee, made up of three members of each of the constituent members of the LSSA, the BLA and the National Association of the Democratic Lawyers (NADEL).

Mr Sigogo said the Transitional Committee has commenced work. The LSSA will be in transition period and it should be given three years with a possibility of giving it a perpetual life span. He pointed out that the issues of governance will also be dealt with and members of the Transitional Committee will draft a proposal on the new governance of the LSSA. This should happen within 12 months from the time the transition starts.

  • The Legal Practice Amendment Act 16 of 2017 came into operation on 18 January. See p 3.

President’s report

CLS President, Lulama Lobi, said SA lives in a time where society has reached a low level in terms of ethics. He pointed out that it is a problem which is affecting service delivery protests and great job losses in society. He added that it is a matter of great concern that the country finds itself facing one of the biggest problems, namely, corruption and unfortunately leaders in high places are implicated. Mr Lobi said in his view corruption grows in society due to a facade of invisibility and untouchability among those who are within close proximity of the seat of power.

Mr Lobi added that if one goes back to the golden days, when the ruling party started, when Oliver Tambo, Pixley ka Isaka Seme and former president Nelson Mandela were in charge, they knew the value of ethics and added that he raised those names because those people were lawyers. ‘I dare to propose that if members of our profession participate in the public life of our country, … that our members will contribute in re-instating the moral rectitude in our politics for the sake of our people and our country,’ Mr Lobi said.

Cape Law Society President, Lulama Lobi, said the legal profession must participate in the public life of the country, to re-instate moral rectitude in the country’s politics. He was speaking at the Cape Law Society’s annual general meeting in East London.

Mr Lobi also spoke about the CLS specialist committees, and said the council of the CLS was encouraged by the society’s specialist committees that are functional and doing the work that they set out to do. He added that the specialist committees are active in commenting on legislation, participating in structures formed to consult with the legal profession and also assisting members who seek clarity on matters of process and ethics. However, he pointed out that there was a request that members from NADEL and the BLA must avail themselves to serve on the specialist committees so that the demographics in those committees are properly reflected.

With regard to the LPA and the announcement of transfer of assets and staff, Mr Lobi said the interest of the CLS is to make sure that the staff goes through the transion to the LPC without suffering any prejudice. He said the CLS will do everything in its power to make sure that it indeed comes to pass. He added that the image of the legal profession has been suffering due to regular reports regarding the greed of their members when it comes to the Road Accident Fund and medical negligence matters and noted that the CLS has taken the view that those in the profession who breach the rules will be brought to book.

Former African National Congress member, Dr Makhosi Khoza, was the guest speaker at the the Cape Law Society’s annual general meeting held in November 2017.

Biggest threat to the democracy of SA

Speaking at the CLS AGM, former ANC member of Parliament, Dr Makhosi Khoza, said the actions of some state organs and government officials in the democratic constitutional dispensation, constitute not only the injustice, but the violation of the country’s collective moral signature. She added that the biggest threat to the democracy of SA is the failure of the political system to deliver human dignity. She noted that the manner in which SA is managing its political system results in a situation where it perpetuates inequality.

Dr Khoza added that she cannot shy away from saying that the failure of the prosecuting authorities to prosecute without fear, favour or prejudice is the biggest threat to the democracy of SA. ‘The media reports on [a] daily basis on corruption cases, but how many of those corruption cases are actually prosecuted?’ asked Dr Khoza. She said that part of the reason she had resigned from the ANC was due to her recognising that if there was to be a prosecution on the Gupta’s leaked e-mails, 85% of the entire ANC leadership would be gone and over 80% of the ministers would be in jail.

Dr Khoza said corruption is not only a victimless crime but it is destabilising and destroying social institutions, such as families, that are important.

Dr Khoza said SA lives in the unprecedented age of disruption. She added that the quality of education in SA appears to be declining at an alarming speed. ‘Our brightest students at universities are dropping out, others commit suicide,’ she said. She pointed out that the country is in a situation where further education and training and sector educational training authorities are not producing what is required by the economy. She noted that there seems to be more focussed on tertiary education, rather than on vocational training.

2017/18 Councillors of the CLS

  • Lulama Lobi (President)
  • Ettienne Barnard (Vice President)
  • Perino Pama (Vice President)
  • Ncumisa Nongogo (Vice President)
  • Likhaya Makana (Vice President)
  • Joanne Anthony-Godden
  • Graham Bellairs
  • André de Lange
  • David Geard
  • Peter Horn
  • Rehana Khan Parker
  • Julian Lindoor
  • Sinawo Makangela
  • Ashraf Mahomed
  • Bayethe Maswazi
  • Janine Myburgh
  • Ben Niehaus
  • Nonoza Potelwa
  • Dumisani Sonamzi

Alternate Councillors

  • Nolukhanyiso Gcilitshana
  • Gordon Pope
  • Jacqui Sohn
  • Zolile Sontshi

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2018 (Jan/Feb) DR 4.